As the Federal Court threw out Cynthia Prior case of 18C against 3 QUT students, the functionality and authority of 18C has been tested. It actually protects FREE SPEECH, writes Dinesh Malhotra.

He writes that Australian Human Rights Commission president Gillian Triggs, rather, has a lot to answer for this matter to go this far.

Melbourne, November 5: In my opinion piece ‘O Boy It is So Fashionable to Pulverize 18C to Champion Free Speech’ posted on on September 5, after carefully analyzing the issue and the campaign against section 18C of the Racial Discrimination Act 1975 by stalwarts like Andrew Bolt (and his army on the right in Australia media), I had written that the real test case on the malignancy (if any) of Section 18C would be that of Cynthia Prior who was suing her employer QUT and three students (Prior v Queensland University of Technology & Ors) and made a prediction – a very bold prediction that Cynthia did not have a case against the students.

A brief recap of the case (from that piece) is as follows:

Section 18C and Cynthia Prior v QUT case – judgement reserved

The real test case on Section 18C in my view is going to be Cynthia (Cindy) Prior vs Queensland University of Technology (QUT) & Others.

Cynthia Prior, an Aboriginal staffer is suing QUT & others under section 18C for $247,570.52 in lost wages and general damages, plus future economic losses.

She alleges three white students who, after having been turned away from a computer lab (Oodgeroo Unit) – “an indigenous space for Aboriginal and Torres Strait students”, posted ‘offensive’ comments on Facebook and thus breached Section 18C.

Important to mention, Cindy Prior was not named in any of the posts.

Not having read the court files, relying only on what is reported in the media – if accurate; I believe Cindy Prior’s claim against the students (if any) should fail.

Section 18D should be sufficient protection to the students who were free to comment on a government / University policy, the way they did, without committing themselves to the litany of errors Andrew Bolt had in his articles.

Her claim against the university may have some merit depending on employment conditions guaranteed to her and QUT’s role as her employer.

The case had centered around Facebook posts attributed to Alex Wood, Jackson Powell and Calum Thwaites made in May 2013. 

On 28 May, 2013 three men entered the computer lab in the Oodgeroo Unit at the Gardens Point campus of the Queensland University of Technology.

At that time Ms Prior was working there as an administration officer.

As Alex Wood, one of the students, was preparing to log on to a computer in the lab, Ms Prior approached them and asked them if they were indigenous. They told her they were not. In response she said words to the effect: “Ah … this is the Oodgeroo Unit, it’s an indigenous space for indigenous students at QUT.

“There are other computer labs in the University you can use. There are computers in “P” block or the library that you can access”.

The men left the computer lab.

Mr Wood found another available computer in another part of the Gardens Point campus. He logged onto his Facebook account and accessed a “Facebook page” called “QUT Stalker Space”. He posted a comment as follows:

Just got kicked out of the unsigned Indigenous computer room. QUT stopping segregation with segregation…?

Thereafter followed a number of posts by various people who were able to post comments to that Facebook page. Of the various comments, Ms Prior focusses upon a post by the sixth respondent, Jackson Powell, as follows:

I wonder where the white supremacist computer lab is..

a later post by Mr Powell in response to another unidentified post:

…it’s white supremacist, get it right. We don’t like to be affiliated with those hill-billies.

and a final post by Mr Powell responding to the ninth respondent, Chris Lee:

Chris Lee today’s your lucky day, join the white supremacist group and we’ll take care of your every need!

Ms Prior also alleges that the seventh respondent Callum Thwaites, posted an entry to the “QUT Stalker Space” Facebook page in the following terms:

ITT niggers

Ms Prior claimed that Mr Wood, Mr Jackson and Mr Thwaite’s comments posted to the “QUT Stalker Space” Facebook page offended s.18C(1) of the Racial Discrimination Act 1975 (Cth).

Cindy Prior leaving Federal Circuit Court after judgement in QUT case
Cindy Prior leaving Federal Circuit Court after judgement in QUT case

Ms Prior sought an apology and claimed damages from each of the three students.

As I had boldly predicted, Justice Jarrett of Federal Circuit Court, Brisbane, on Friday, November 4, dismissed Ms Prior’s case against each of the three students – Alex Wood, Jackson Powell and Calum Thwaites.

Essentially, the ‘offending’ comments of three students did not fall into the legal ambit of Section 18C.

And as I had anticipated, Ms Prior’s case against her employer – QUT and two of its staff members, Ms Prior’s bosses, has been adjourned until November 21 for further consideration.

In a 37 pages long judgment Justice Jarrett dismissed cited reasons for his decision including,

that Alex Wood’s words were:

  1. directed to QUT and its actions; and
  2. rallying against racial discrimination.

That when considered in context, Jackson Powell’s comments were a poor attempt at humour. Each of the posts fell into the same category.

Justice Jarrett found that comments of Alex Wood and Jackson Powell would not reasonably offend, insult, humiliate or intimidate anyone or any group, in the shoes of Ms Prior and thus did not meet the definition to invoke Section 18C.

Hence Ms Prior’s case against Alex Wood and Jackson Powell was dismissed.

Calum Thwaites had claimed that he had not posted those alleged comments and someone else had used his name and posted comments in his name.

In an affidavit filed on 11 February, 2016, Calum Thwaites stated that he did not post the message. He provided evidence that demonstrates, on a prima facie basis, that he did not post and could not have posted the relevant message.

Justice Jarrett accepted that evidence and also dismissed Ms Prior’s case against Calum Thwaites.

Clearly, those comments were not made and could not be said to have been made because Ms Prior was an indigenous, which is another requirement which needs to be met for Section 18C to be invoked.

As I argued before critics of Section 18C should pack your egos in the national interest and embrace the truth – Section 18C does not endanger free speech.

Liberal senator James Paterson has been quoted saying: “Defenders of the law will no doubt argue that the dismissal of the case proves there is no need to change 18C.”

“This shows callous disregard for the welfare of three innocent students whose lives have been damaged by a tortuous three-and-a-half year case,” he said.

He said an inquiry was “the best path forward” to achieve real and viable change.

I vehemently disagree. There is nothing wrong with the law. It is the process (or abuse thereof) of invoking it.

I agree with Anthony Morris QC, counsel for two of the students, that Australian Human Rights Commission president Gillian Triggs has a lot to answer for this matter to go this far.

Potential abuse of Section 18C – or for that matter, any law, even modified 18C (if at all); cannot be stopped.

People and their lawyers, in the game for making their living, will always attempt to use (and abuse) the system to achieve a certain goal; it is up the judiciary to stop that and take a stern approach against vexatious attitudes.

Provided with specific conditions to be met for its invocation, if Section 18C puts certain restriction on behaviour which can be seen as “offending”, Section 18D provides exceptions and exemptions.


(Dinesh Malhotra is the founding editor of Bharat Times. He is a locally registered, Indian lawyer.)

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